Interference 104,066
of treating cancer cells in vivo, we point out that this issue was addressed by the APJ in
the Decision on Motions (Paper 61, pp. 4-8). In its brief for final hearing, Lee has not
pointed out any facts which were overlooked or misapprehended by the APJ in the
referenced Decision. Rather, for the most part, Lee has merely repeated its original
arguments.12 This merits panel has considered Lee’s belated motion 1 in its entirety
(37 C.F.R. § 1.655(a)); however, we find no factual or legal error in the APJ’s decision
that Lee’s claims 1-6 would be understood by one of ordinary skill in the art to
encompass the introduction of a wild-type p53 suppressor gene to mammalian cancer
cells both in vivo and in vitro.13 Briefly stated, we find that the language of Lee’s claim
1-6 to be clear on its face and that there is no limitation as to the environment in which
the mammalian cancer cells recited therein must exist. In addition the APJ found, and
Lee acknowledges in its brief for final hearing, that the ‘220 patent teaches a method of
introducing a wild-type p53 suppressor gene into mammalian cancer cells in vitro
12 Lee’s arguments on pages 11-12 of its brief with respect to the Office action
mailed April 5, 1995 and the examiner’s double patenting rejection of its claims over two
applications that are not of record in the present interference, are newly presented and
thus have not been considered by the merits panel. We point out that Lee’s newly-
presented argument relying on the statements in an examiner’s response differs
substantially from its original argument (Paper No. 56, p. 5) that statements on page 4,
lines 2-3, of a preliminary amendment filed February 29, 1995 (which amendment the
APJ pointed out was not entered), supported its position that claims 1-6 are directed to
treating cancer in a mammal (in vivo).
Lee acknowledges that the preliminary amendment filed February 28, 1995, was
not entered. LB, p. 11, n 2. Thus, its reliance on statements made therein to support
its position (LB, p. 11), are misplaced.
13 Rather than burden the record with unnecessary verbiage, we direct attention
to APJ’s Decision on Motions, p. 4-8 and adopt that position as our own. See
Appendix.
11
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